Harsh Words, New Trials

Prosecutors' Closing Arguments Faulted

Five convicted felons have won new trials in the past three months because state courts ruled that prosecutors went too far in their closing arguments.

The reversals come as defense attorneys in two high-profile cases in Connecticut pursue appeals also targeting, in part, closing arguments.

In the case of Edward R. Grant, convicted of the 1973 slaying of Concetta ``Penney'' Serra in New Haven, one of the issues in the defense's motion for a new trial is that prosecutor James G. Clark implied in his closing that the murder might have occurred during an attempted carjacking. There was no evidence of a carjacking presented at trial.

``You can't draw an inference from facts that aren't in evidence. That's improper,'' said defense attorney Thomas J. Ullmann. ``It went to the heart of a critical issue in the case: the lack of a motive.''

But Clark sharply rejected that reasoning, saying he would be ``shocked'' if Grant's murder conviction wereoverturned.

``That isn't going to be a basis for reversal because it's an inference they can draw,'' Clark said Wednesday. ``I didn't say it was the motive or that we had proven the motive. It was carefully phrased.''

In the Michael Skakel case, defense attorney Mickey Sherman complained that the multimedia presentation that ended the state's closing argument was inflammatory. A taped interview that Skakel gave to an author was played as a projected photo of a smiling Martha Moxley, the murder victim, dissolved into a grim crime scene photo.

But both the photos and Skakel's taped interview were admitted as evidence.

Since only 10 percent to 12 percent of all criminal convictions are overturned in an average year in Connecticut, the recent reversals have prompted the chief state's attorney's office to issue a guidebook on ``prosecutorial misconduct.''

Experts say there has been no change in the law or increased scrutiny of closing arguments to explain the recent reversals.

``A lot of it was simple human error,'' said Susan Marks, a supervisor in the appellate bureau at the chief state's attorney's office. ``Do I think closing arguments have changed a great deal? Personally, I don't think so.''

In the latest case that was overturned, the state Supreme Court ruled that a New Haven prosecutor displayed ``particularly serious misconduct'' during closing arguments in the murder trial of Leotis Payne. The prosecutor told jurors that Payne ``probably got himself involved in another robbery a couple of days later,'' but no evidence was presented at the trial regarding the alleged robbery.

Payne's convictions for felony murder and six other charges were overturned after the state's highest court ruled unanimously last week that the prosecutor had shown ``serious and deliberate'' misconduct.

In two rulings by the Supreme Court and three by the Appellate Court since March, prosecutors have been strongly scolded for improper remarks.

``This decision is an exclamation point to a recent string of decisions regarding prosecutors crossing the ethical line in closing arguments,'' said defense attorney Conrad Seifert, who argued Payne's case successfully before the Supreme Court.

In the other cases:

The Supreme Court in March ordered a new trial for a New Haven restaurant owner who was convicted of arson after Clark, the prosecutor, said that five other witnesses ``all must be lying'' if the restaurant owner was actually innocent.

In April, the state Appellate Court ordered a new trial for a former Hartford police officer who was convicted of lying in the heavily publicized 1997 case of a Massachusetts man who was savagely beaten near the Bloomfield police station aftera high-speed chase from Hartford. The court said Hartford's top prosecutor, James Thomas, displayed ``egregious prosecutorial misconduct'' for statements made during closing arguments that the Appellate Court felt were too emotional and inflammatory. After showing a police badge to the jurors, Thomas told them that officers involved in the beating had dishonored it. He said they dishonored a memorial in Washington that is dedicated to police officers who have died in the line of duty.

The prosecutor also held up a pair of blue-tinted sunglasses, saying that police officers had hidden behind the ``blue code'' of silence and could not clearly see the truth. ``What those officers did that night was a disgrace,'' Thomas told the jurors. ``It's a disgrace to their badge. Don't let them get away with it.''

The state Supreme Court has agreed to hear the appeal in the case.

In April, the Appellate Court overruled a conviction after the prosecutor said that two defense witnesses ``reserved a place in hell for themselves'' after recanting their testimony at the manslaughter trial of Ryan Thompson. Thompson had been charged with the 1998 fatal shooting of a 17-year-old on a roof outside a party in Plainfield.